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This is ancient news, i.e. two days old. My computer died Sunday and really put a crimp in my blogging. I’ve got things mostly back up and running now, but I wanted to at least mention this for posterity: This afternoon, the District Court for the Middle District of Pennsylvania became the latest court to strike down the Patient Protection and Affordable Care Act’s (Obamacare) individual mandate, holding that “[t]he [...]...

Apparently what “reality” means to the left is the government’s absolute and unhindered ability to control every decision you make, even the decision to do nothing: U.S. District Judge Gladys Kessler’s 64-page ruling (below) takes aim at the argument espoused by many conservatives which holds that the passive act of not purchasing health insurance does not constitute an activity that can be regulated under the Commerce Clause. “It is pure [...]...

ABC’s “This Week” aired a somewhat testy exchange today between host George Stephanopoulos and President Obama on whether a mandate for individuals to obtain health insurance coverage is equivalent to a tax. Watch: As I highlighted in a post just last week, this question isn’t as clear-cut as the President makes it out to be. The Congressional Budget Office has taken the position that an individual mandate combined with tight regulatory control [...]...

With the decision today by a court in Florida that the individual mandate is unconstitutional, thus invalidating the whole law, Democrats are bound to begin wondering whether their signature achievement will survive. The case will obviously be taken up by the Supreme Court and the decision will likely be 5-4 one way or the other. Justice Anthony Kennedy, as always, will be the swing vote. Obviously, the left hopes to [...]...

Kevin Drum, who I recently learned lives not far from me, has some thoughts on yesterday’s Obamacare decision and the enumerated powers of the Constitution: The state of Massachusetts can basically do anything it wants as long as it’s arguably rational and not specifically prohibited or reserved to the federal government. And this works out fine, which is why it’s so odd to hear opponents of a federal individual mandate [...]...

One of the more controversial elements of ObamaCare is the mandate for most individuals to purchase insurance beginning in 2014. There is really no precedent for a federal mandate of this scale requiring individuals to purchase a product or service. So not surprisingly a number of state Attorney Generals have indicated they will be filing suit questioning the constitutionality of this provision. Of course the individual mandate is also very [...]...

With the Administration frantically trying to tamp down the ongoing controversy over the public option – and no less of a source than the NY Times indicating that the public option is all but dead – it seems likely that the next component of ObamaCare to come under more scrutiny will be the individual mandate. Pundits on the left are criticizing the individual mandate as an immoral bailout of the [...]...

Jonathan Chait and Kevin Drum are recommending their readers absorb this piece by Yale law professor Andrew Koppelman. It’s a very well written attempt to take down any and all criticism of the constitutionality of Obamacare. Koppelman says the law is obviously constitutional and wipes away, or rather sidesteps, the regulation of economic in-activity objection. He says that so long as Congress has the power to regulate a national issue [...]...

The Supreme Court upholds the ban on partial birth abortion in a 5-4 decision. Here’s Ed Whelan at NRO: On initial read, this opinion strikes me as a significant victory. In particular, it appears that the Court is disinclined to continue to have special ad hoc rules that uniquely favor those who challenge abortion regulations. Professor Glenn Reynolds is disappointed: I believe that the ban should have been struck down [...]...

There is an interesting discussion going on over at Hot Air regarding whether an individual mandate to buy health insurance would be constitutional. Ed Morrissey seems to have serious questions as to whether it would:

So I’ll ask again: What authority does Congress have to mandate that people buy a product? What precedent do they have to threaten people with imprisonment if they don’t buy a product merely for existing, as opposed to a prerequisite for accessing public roads as with car insurance? The reason why Pelosi, Leahy, and Hoyer refuse to answer those questions is because they don’t have an answer to them.

A few brave souls will argue that the “general welfare” clause means that Congress can mandate anything that they see as beneficial, but that misreads the word general â€“ which meant the welfare of the nation as a whole, not a responsibility to make each individual citizen’s life choices for them. The opposite reading would have made Congress a totalitarian monster, with the executive as its hatchetman, and the founders would have scoffed at such an interpretation.

The Constitution exists to limit the power of government and each branch, reserving most of the power to the states or to the people. Claiming that Congress has the power to dictate that we must buy into health insurance by claiming that all that is possible must therefore be mandatory is arguing that Congress has a dictatorial, unlimited power over every aspect of our lives.

For the counter side of this argument, I’d recommend this Politico article by UC Irvine law professor Erwin Chemerinsky. (Chemerinsky focuses on the Commerce clause to argue that Congress has broad powers to legislate rules and regulations dealing with the health care industry).

Here’s my take: I don’t know. And with all due respect to my friend Ed Morrissey and professor Chemerinsky, I don’t think anyone else really knows either. Simply because there is no precedent for this type of action by the federal government, as noted by this 1993 article from the CBO addressing the possibility of an individual mandate under HillaryCare:

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government. Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.

Unless I’ve missed something in the proceeding 15 years, this statement remains just as true to this day. And so given that this has never been done before, and the lack of specificity in the Constitution addressing this type of issue, I’d say it’s an unsettled question. One which likely would need to be settled by the Supreme Court.

Although I have sympathy for the argument for an individual mandate based on the free-rider problem, I think it would set a dangerous precedent for federal intrusion in other areas of our lives. And so I ultimately hope it would be held unconstitutional. But I have to say that I’m not optimistic this will be the case given the Court’s 200+ year history of legitimizing the expansion of the federal government under the Commerce clause.